Although often criticised, the National Health Service of the United Kingdom remains the envy of the majority of other nations and we are extremely lucky to be aware that we live in a country where medicine in general but surgery in particular is practiced to the highest standards by competent and caring professionals. Like in any other country, however, surgical mistakes are occasionally made at the expense of the patient’s health.

If you have recently been the victim of any form of surgical error, it is clearly a distressing and traumatic experience. Understandably, you may be worried about the future implications that the illness contracted or injury exacerbated may have for your career, your family and, of course, your physical health and general well-being.

Sadly, in a very small number of cases, families may even be grieving following the loss of a loved one.

It goes without saying that money cannot ever compensate for berievement or act as a substitute for your health. However tragedy or illness can also have significant financial implications for victims of surgical errors and their families as earning power may be reduced or extinguished completely.

If, therefore, you have suffered injury, or contracted an infection or illness due to the negligence of a surgeon, it may be possible to make a successful personal injury compensation claim.

What is ‘Surgical negligence’?

‘Surgical negligence’ is a failure on the part of a surgeon (or indeed another member of his or her surgical team) to provide the expected standard level of professional surgical care to a patient. This failure may result in injury, infection or other harm or indeed the death of the patient. While in the UK this is thankfully rather rare, surgeons do on occasion make mistakes and some of these errors are due to neglignce.

While ‘surgical negligence’ refers specifically to personal injury arising from negligent care in the operating theatre, it in truth falls under the same broad legal category as what is referred to variously as ‘clinical negligence’, ‘medical negligence’ or ‘hospital negligence’ among other names.

Liability

Surgical negligence is no different from any other branch of personal injury law with regard to the pre-requisite that the injury sustained or illness contracted following a surgical error must result from the negligence of an individual, group or legal entity which had a duty of care towards the claimant at the time and in the circumstances of the accident in the performance of that duty.

Clearly, a surgeon (and the hopital in general) owes a duty of care to patients. Prospective claimants should, however, be aware that it can often be difficult to prove negligence on the part of the hospital even when an injury has been sustained, an infection has been contracted or a misdiagnosis made.

Hospital Negligence

For a hospital negligence compensation compensation claim to be successful, it must be proved ‘on the balance of probability’ that the treatment of the patient by the healthcare professionals involved was negligent and that this negligence caused or contributed to patient’s injury or illness. This means that unlike in criminal law cases in the UK where the guilt of an accused must be proven ‘beyond a reasonable doubt’, a civil court (where cases of hospital negligence will be brought) will find in favour of the party whose story is the most likely version of events, i.e. a much lower burden of proof than the criminal equivalent.

“How negligent does the surgeon have to have been?”

A common source of confusion for claimants is that even though they may have sustained an injury, contracted an illness or aggravated a pre-existing medical condition while in theatre it does not necessarily mean that the surgeon or his or her team were ‘negligent’. Even if it was indeed feasible to envisage better care, or the subject surgical team did indeed make some errors, it may have been the case that illness contracted or injury suffered, was in fact inevitable. In such circumstances a compensation claim for surgical negligence will fail.

When the word ‘negligent’ is used in everyday conversation it’s meaning can be quite subjective; what one person deems negligent, another could think was just careless or naive. Therefore it is necessary to clarify what exactly is meant by ‘surgical negligence’ under UK law.

Case law in England and Wales has established the principle that the court hearing a case of surgical negligence should ask as to whether a normal competent surgeon would have acted in the same manner as the defendant. Therefore even where the surgeon’s actions caused or exacerbated the claimant’s personal injury, his or her actions may not in fact be deemed negligent if it can be demonstrated that they were the ‘reasonable’ and logical actions of a surgeon given the information available and the relevant circumstances. Consequentially, even when a surgeon has made a mistake, provided that other surgeons might have made the same decision and that that decision was somewhat logical, that error may not actually constute surgical negligence.

Injury or damage

Any legal claim for surgical negligence must involve some form of injury, either physical or psychological, as a consequence of the negligent actions of the surgical team. Even when a surgeon has acted extremely negligently, it may not always result in injury or adverse health problems for the patient due to a variety of factors; some as simple as sheer luck or fluke. In such cases there can be no successful personal injury claim as there has been no personal injury sustained. A compensation claim can only be made against the relevant healthcare authority for personal injury, loss or damage that has actually been suffered.

Time limitation for surgical negligence claims

As a rule of thumb, the maximum time limit for making a personal injury claim in England and Wales is three years after what is called the “Date of knowledge.” The date of knowledge, generally speaking, is the date on which subject injury was sustained or the illness contracted. Other than some notable exceptions, the right to make a claim for compensation under UK law is extinguished three years to the day following the date of knowledge.

Ordinarily, the date of knowledge in cases of surgical negligence is the day on which the surgical error was in fact made i.e. in theatre. However, a surgeon’s error may not always be evident straight away and in such cases the ‘date of knowledge’ is actually the date on which the plaintiff became aware of the illness or injury resulting from the negligent surgery and he or she will have three years following that date to commence personal injury proceedings for compensation.

When in doubt as to the “date of knowledge”, an injured party should contact a solicitor at the earliest convenience following an incident of surgical negligence. Waiting too long may result in the right to ask for compensation being lost forever and even if it appears that it is too late to make a claim it is still worthwhile to consult with a solicitor as an exception may apply to the particular case.

Time periods relating to child victims of surgical negligence

Should the victim of a negligent surgeon be a minor, the ‘date of knowledge’ of the injury is in fact the victim’s eighteenth birthday. That is to say that the three-year limitation time period does not start to run until the child victim reaches majority. Thereafter, under British law, the injured party (now an adult) has three years within which to issue court proceedings. Nonetheless, a minor claimant can make a claim for surgical negligence compensation prior to celebrating his or her 18th birthday provided a parent or guardian legally acts as his or her ‘next friend’.

What if the surgeon was not 100% responsible for my injuries?

Other than the possible exception of some forms of cosmetic surgery, it is of course the case that people who required surgery were already sick or injured prior to any negligence on the part of the surgeon who operated on them. It is therefore possible that this initial injury, such as one sustained in a workplace accident, was caused by the negligence of a third party.

What happens where the surgical team have provided negligent treatment does not ’cause’ but only exacerbates the initial problem? In such circumstances a ‘share’ or percentage of the fault can be attributed to the two, three or even more parties who were to blame for the claimant’s injuries and so liability can be shared between a number of defendants on a percentage basis.

“How much compensation will I get for my surgical negligence claim?”

As any good personal injury lawyer will tell you, the answer to this question, should it be posed in an initial consultation before the receipt of medical records and reports, is ordinarily “How long is a piece of string?”

The reality is that large number of factors contribute to a compensation settlement or award for surgical negligence. It would be foolish and unprofessional of a lawyer to give an indication without, at the very least, having first studied the medical evidence. Some of the more basic considerations in determining the value of surgical negligence compensation are as follows:

  • Type of injury Health problems resulting from surgical negligence are valued with regard to their gravity and whether or not objective proof, such as expert diagnosis, in required in order to be believed . Obviously, the permanency and persistence of the injury or illness are also significant factors.
  • Prognosis As one would expect, long-term or permanent injury or illness justifies a greater amount of compensation that could be expected for a short-term problem. The age of the victim of surgical negligence is also significant. When an injury is permanent, same may be ‘worth’ in monetary terms more to a youthful claimant than to an elderly person. Simply put, this is because it is reckoned that a younger person will, usually, have to live with the injury or condition for a greater period of time. To take a rather simplistic example; if a 22 year old man loses a limb to a surgical error, he may have to live with the consequences of that injury for over 60 years. An 80 year-old suffering a similar injury, will not normally have to cope with that disability for such a lengthy period.
  • Medical History Medical history and records are an important factor in assessing a surgical negligence claim. A long history of similar injuries and of treatment of the same area of the body may affect a claim significantly. A key question may be whether the surgical negligence involved was the primary cause of the injury or only an aggravating factor?
  • Loss of quality of life This is a personal assessment for each claimant as each person’s passions, hobbies and interests are different; injury to the index finger following surgery, for example, may be considered a more serious loss if it can be shown that the victim was a keen musician prior to the subject surgical error.
  • Severity and persistence of the pain suffered The basic principal of personal injury compensation is indeed to compensate the victim for his or her injury and related suffering, therefore the more intense the pain felt, and the persistence of same, the higher the compensation awarded is likely to be.

Liability

Even when a surgeon has acted negligently, the cause of a patient’s injury or illness is not always obvious. In many situations one party e.g. the surgical team which operated, might be entirely at fault, however it is also true that several, factors might well have contributed to the injury that was sustained and the subject surgical negligence was only part of a wider picture. Moreover, one of the causal factors may have in fact been the negligence of the patient him or herself. How then can blame be apportioned? Is the plaintiff entitled to any form of compensation if he or she has contributed to their own medical problems?

Under UK law, “Contributory negligence” is the principle that an injured party might possibly have contributed to his or her own injury by acting negligently when faced with the evident and known conditions of the situation.

In surgical negligence cases this could include circumstances where the plaintiff has in fact exacerbated their illness or injury by failing to co-operate with follow-up treatment provided (e.g. missing medical appointments or neglecting to take prescribed medication etc.) when such care might have cured or alleviated the problem.

When this is compared with the surgeon’s negligence, the extent of contributory negligence can in fact defeat the claimant’s case (i.e. the claim will fail) or significantly reduce the amount of compensation awarded.

Medical special damages following surgical error

In normal circumstances the costs of any specialist medical treatment or corrective surgery that a claimant requires because of the injuries sustained in theatre can be claimed back in full or in part.

Loss of earnings

Loss of earnings is distinct from the part of the claim that compensates for the personal injury and suffering in a physical sense of the surgical negligence personal injury claim. This often causes great confusion for claimants and is a source of frustration for lawyers. Clients regularly draw comparisons between the settlement negotiated on their behalf or monetary award made by the court to another party who received “£15,000 more than me!” for an injury or illness that appears to be similar to the one they suffered due to surgical negligence.

This may, in part, be due to misinformation. The version story that we hear in the bar with friends or during a tea break at work may not in fact reflect the reality!

Even if the figure we have been given is correct, however, it is essential to realise that the difference in the overall settlement figures may simply be due to a significant loss of earnings which the other person was awarded because of a lengthy absence (or a predicted absence) from their job.

Naturally, the money awarded for “Loss of earnings” corresponds to the particular person’s salary or indeed potential salary. With respect to this aspect of a compensation claim, the gravity of an injury or illness contracted itself is relevant only insofar as it restricts the victim from going to work and earning a living.

Different surgical injuries may also have entirely different consequences for the claimant depending on his or her profession e.g. a knee injury to a professional footballer or a scar to a model.

Please note that each surgical negligence compensation claim is unique. If you have recently suffered an injury or developed an illness following negligent surgical practice you may have a valid personal injury claim. You are advised to discuss all of the points raised in the preceding article with a solicitor as soon as possible.